Opinion
G055803
09-23-2019
THE PEOPLE, Plaintiff and Respondent, v. MARIO ORLANDO MONTANO, Defendant and Appellant.
Johanna Pirko, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, A. Natasha Cortina and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13NF4475) OPINION Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed. Johanna Pirko, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, A. Natasha Cortina and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted defendant Mario Orlando Montano of assaulting A.P. with the intent to commit rape (Pen. Code, § 220, subd. (a)(1); count 1) and assaulting her by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4); count 2). As to both counts, the jury found defendant inflicted great bodily injury upon her during the commission of the offense. (Pen. Code, §§ 12022.7, subd. (a), 12022.8.) Defendant was sentenced to state prison for a total term of seven years comprised of two years on count 1 plus a consecutive five-year term on the great bodily injury enhancement (Pen. Code, § 12022.8). As to count 2, the court imposed two years for the offense and three years for its enhancement but stayed them under Penal Code section 654.
Defendant's sole contention on appeal is that the court abused its discretion by admitting evidence of uncharged conduct under Evidence Code section 1108. We disagree and affirm the judgment.
All further statutory references are to the Evidence Code unless otherwise stated.
FACTS
Charged Offenses
In the early afternoon of December 10, 2013, A.P. went for a run on the asphalt trail that loops around Walnut Canyon Reservoir in Anaheim. As she completed her first lap, she saw defendant taking pictures. He said "Hi" to her, and she responded in kind as she ran by.
A few minutes later, she slowed down and started walking. While walking, she noticed defendant running in her direction. She thought it odd as he was running in a suit or blazer and matching pants. He caught up and was trying to talk to her, so she removed her headphones. Defendant walked a few feet to A.P.'s left and complimented her running. He introduced himself as "Mario" and extended his hand. As soon as A.P. reached out to shake his hand, she suspected something was wrong based on defendant's body language and the way he was looking at her. When their hands touched, A.P. flinched and tried to pull her hand back but defendant's grasp tightened.
Defendant lunged at her, knocking her to the ground. A.P. landed on her side in the dirt next to the trail with defendant on top of her. Defendant rolled her onto her back, and the two ended up in a concrete ditch beside the trail with defendant straddling her. A.P. screamed for help and hit defendant in an effort to free herself. Defendant countered by trying to muffle her screams and restrain her arms. She tasted blood in her mouth and thought she had chipped a tooth. Defendant did not say anything, but he grabbed her tank top and pulled it hard, causing it to tear. At one point during the struggle, defendant reached down in the area of his belt or zipper.
A.P. continued to fight defendant, hitting him in the head, trying to gouge out his eyes, and using her legs to move out from underneath him. As she was trying to wiggle away from him, defendant grabbed her right leg with both of his arms and bit her leg with a wet but not painful bite. She repeatedly kicked defendant with her left leg and was eventually able to free herself by slipping out of her right shoe.
Once freed, A.P. ran to a nearby neighborhood and told the first person she saw that she had been attacked. The woman took A.P. inside her home and called the police. On the phone, A.P. explained what had happened and gave a description of her attacker.
An officer dispatched to the reservoir regarding the assault noticed defendant, who matched the description of the possible suspect, "walking extremely fast" away from the trail and toward the roadway. Defendant was carrying a long-sleeve dress shirt and a sport coat under his t-shirt and dropped these items when the officer honked his car horn to attract defendant's attention. Defendant also had scratches on the back of his right hand.
A.P. was taken by a police officer to defendant's location, and she identified defendant as her attacker. As a result of the attack, she had scratches on most of her body, abrasions on her right elbow, and a bite mark on her leg. She also lost a tooth as a result of blunt trauma during the incident. In her statement to police that day, A.P. said the more defendant came toward her to shake her hand, the more she backed away and that she might have fallen into a ditch while backing away from defendant. At trial, she clarified she fell into a ditch because defendant tackled her.
Defendant was interviewed at the police station a few hours after the incident. He denied any contact with A.P. and claimed he got the scratches on his hand when he fell chasing after his water bottle that rolled down the hill.
When he testified at trial, defendant admitted having contact with A.P. but explained the incident was a misunderstanding. He had been walking on the trail and taking pictures when he saw A.P. He walked up to her and introduced himself because he had questions about the trail. As A.P. went to shake his hand, she looked at him and then suddenly backed up. She lost her balance and fell off the trail into a ditch. As A.P. was falling, defendant tried to grab her hand, but her momentum pulled them both down and he landed on top of her. A.P. immediately screamed for help, started hitting and kicking him, and trying to push him away. Defendant made an effort to block her blows but did not cover her mouth or grab her tank top. He was trying to get away from her as much as she was trying to get away from him. Their entanglement lasted five to 10 seconds, after which A.P. went running in one direction and he ran away in the other. The experience frightened defendant and when the police interviewed him later that day, he repeatedly lied and denied everything because the police had made negative comments about him and his heritage, causing him to believe they would not be fair to him.
Uncharged Prior Offense
On April 2, 1992, 17-year-old R.S. was walking home alone around 9:40 p.m. When she was near the intersection of First and Flower Streets in Santa Ana, an area frequented by prostitutes, she noticed defendant walking behind her. She crossed the street and defendant followed. He caught up to her and grabbed her from behind. When she fought back, he punched her in the face with his fists, without saying anything. Defendant knocked R.S. to the ground. Struggling to get back up, she hit defendant and screamed for help. Defendant knocked her to the ground again when she got back up. This sequence repeated multiple times until defendant knocked her down and sprayed her eyes with self-defense spray. Unable to see, R.S. felt her shirt being pulled up and her pants being pulled down. She screamed for help and continued to fight back. Some people came to her aid and defendant ran away. R.S.'s shirt had been ripped but was not completely torn off.
R.S. admitted she was previously convicted of petty theft in 2010 and robbery in 2011. She did not recall telling a police officer investigating the incident in 1992 that defendant approached her and offered her $100 for sex.
In his testimony, defendant also addressed the incident with R.S. and denied assaulting her. He approached R.S. thinking she was a prostitute and offered her $100 for sex. When she rejected his initial offer, he offered her $200. Although she agreed at first, she changed her mind, called him a "monster," and told him to get lost. When he tried to get her to reconsider, she started pushing him and trying to scratch his face. Even though she was hitting him and cursing at him, he did not strike her, but he did spray her with dog repellant to stop her attack. He did not force her to the ground, grab her shirt, or pull down her pants.
DISCUSSION
Defendant contends the court abused its discretion by admitting evidence of his assault upon R.S. under sections 1108 and 352 because the probative value of this evidence was substantially outweighed by its prejudicial effect. We find no abuse of discretion.
Background
Prior to trial, the prosecution filed a motion in limine to admit evidence of defendant's assault upon R.S. under section 1108. The court and counsel discussed the admissibility of this evidence at various points prior to and during the trial.
The prosecution also sought the admission of evidence under section 1108 concerning an incident in which defendant offered a neighbor money for sex, but the court excluded this evidence. --------
The admissibility of R.S.'s testimony was first considered during a pretrial hearing on the prosecution's motions in limine. The prosecutor explained that in 1992 defendant had been charged with assault with the intent to commit rape upon R.S., but following a jury trial, defendant was only convicted of misdemeanor assault. The prosecutor argued evidence of the 1992 incident was admissible under section 1108 nonetheless. The defense opposed the motion, asserting the prior misconduct evidence was unduly prejudicial and its admission would force defendant to relitigate an allegation of a sexual offense occurring many years ago of which he had already been acquitted. Responding to defense counsel's argument, the court indicated that if it admitted the propensity evidence, it would, at the request of the defense, inform the jury that defendant was not convicted of a sex crime but was convicted of misdemeanor assault or battery.
After further discussion, the court ruled the evidence admissible. Analyzing its admissibility under section 352, the court found evidence of the prior incident would not consume an undue amount of time as it involved only one witness. The court also found the jury would not be confused by the prior sex offense evidence and noted the jury would be instructed with CALCRIM No. 1191A on how to consider this evidence in determining defendant's guilt on the current charge. Addressing whether there was a substantial danger of undue prejudice, the court indicated the charge in the prior incident was the same as that in count 1 of the current case and would therefore not unduly inflame the jurors' emotions. The court further found the evidence of the prior offense probative despite the span of 21 years between it and the current offense. Summarizing its ruling, the court stated evidence of the prior incident survived analysis under section 352 as "it would provide some probative insight into [defendant's] disposition."
During jury selection, the prosecution filed a supplemental brief supporting its motion to admit evidence of the prior assault on R.S, because it had learned defendant was charged with aggravated assault (Pen. Code, § 245, subd. (a)) in 1992 rather than assault with the intent to commit a sex offense (Pen. Code, § 220). The court heard further argument on the admissibility of R.S.'s testimony. Defendant again objected to the admission of this evidence, arguing it was unreliable and violated his right to due process. The court ruled the propensity evidence remained admissible under sections 1108 and 352, finding defendant's conduct in the prior incident was "highly probative [as] to whether he has a propensity to commit sex acts against females" and the prior conduct was not too remote to be probative.
During R.S.'s testimony, in a hearing outside the presence of the jury, the court and counsel discussed the parties' proposed stipulation concerning the charges and verdict in the prior case. Defendant wanted the jury to be informed that the district attorney's office did not charge him with a sex offense in the prior case but had instead charged him with assault under Penal Code section 245 and he was acquitted of that charge. The prosecutor wanted the jury also to be informed that defendant was convicted of misdemeanor assault and/or battery, a lesser offense, but defendant objected to the jury hearing this. The jury was subsequently read the parties' stipulation that indicated defendant was arrested for the incident occurring on April 2, 1992, and was charged by felony complaint with committing an assault upon R.S. by means of force likely to produce great bodily injury in violation of Penal Code section 245, subdivision (a)(1), but was acquitted of that charge.
Applicable Law and Analysis
"[S]ection 1101, subdivision (a) sets forth the '"strongly entrenched"' rule that propensity evidence is not admissible to prove a defendant's conduct on a specific occasion." (People v. Jackson (2016) 1 Cal.5th 269, 299.) But when a defendant is charged with a sexual offense, section 1108 "carves out an exception" to section 1101's prohibition against propensity evidence. (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 823.) Section 1108, subdivision (a), states that when a criminal "defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." (Ibid.) "[S]ection 352 gives a court the discretion to 'exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.'" (People v. Nguyen (2010) 184 Cal.App.4th 1096, 1116 (Nguyen).) As long as the evidence is not "'so prejudicial as to render the defendant's trial fundamentally unfair,'" its admission will not offend due process. (Ibid.)
"As to admissibility under section 352, evidence of past sexual offenses proffered under section 1108 requires the court to 'undertake[] a careful and specialized inquiry to determine whether the danger of undue prejudice from the propensity evidence substantially outweighs its probative value.'" (People v. Erskine (2019) 7 Cal.5th 279, 296.) Among the factors the court considers in this inquiry are "'"nature, relevance, and possible remoteness [of the evidence], the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses."'" (Ibid.)
In Nguyen, we condensed this list and identified "five factors [that] stand out as particularly significant" when a court is considering the admissibility of evidence under sections 1108 and 352: "(1) whether the propensity evidence has probative value, e.g., whether the uncharged conduct is similar enough to the charged behavior to tend to show the defendant did in fact commit the charged offense; (2) whether the propensity evidence is stronger and more inflammatory than evidence of the defendant's charged acts; (3) whether the uncharged conduct is remote or stale; (4) whether the propensity evidence is likely to confuse or distract the jurors from their main inquiry, e.g., whether the jury might be tempted to punish the defendant for his uncharged, unpunished conduct; and (5) whether admission of the propensity evidence will require an undue consumption of time." (Nguyen, supra, 184 Cal.App.4th at p. 1117.) "A trial court balances this first factor, i.e., the propensity evidence's probative value, against the evidence's prejudicial and time-consuming effects, as measured by the second through fifth factors." (Ibid.) The trial court's ruling admitting evidence under sections 1108 and 352 is reviewed for an abuse of discretion. (People v. Story (2009) 45 Cal.4th 1282, 1295.)
Defendant contends the court abused its discretion in analyzing the admissibility of the prior sexual assault evidence under section 352 by overestimating its probative value and underestimating its prejudicial effect. He acknowledges evidence of the 1992 assault had probative value as it "bore some basic similarities to the current charge," but he argues "its probative value was undermined" by the remoteness of the prior misconduct as there was a span of 21 years between the prior and charged assaults. He contends that weighing against the "low probative value" of this evidence was the substantial prejudice resulting from the jury not being informed that he received a conviction for his conduct in 1992. He contends the jurors might have concluded he was not punished for his prior conduct and would want to punish him for conduct they "viewed as unrevenged." He further asserts the court's abuse of discretion violated his constitutional right to a fair trial. We disagree with each of his arguments. The court carefully and repeatedly considered the admissibility of the prior misconduct evidence under section 352.
Defendant contends the probative value of the prior offense evidence was substantially undermined by its remoteness. We are not persuaded. While the 21-year gap between the prior and charged assaults was lengthy, it is well-established that no specific time limits have been set for determining when an uncharged sex offense is too remote to be admissible. (People v. Branch (2001) 91 Cal.App.4th 274, 284 (Branch).) Age alone is not determinative. The focus, instead, is whether "significant similarities between the prior and the charged offenses . . . 'balance[] out the remoteness.'" (Id. at p. 285.) Thus, the more substantial the similarities between the charged and uncharged conduct, the more remote uncharged conduct can be and remain probative and admissible. (Ibid.)
"Numerous cases have upheld admission pursuant to . . . section 1108 of prior sexual crimes that occurred decades before the current offenses." (People v. Robertson (2012) 208 Cal.App.4th 965, 992.) In Robertson, the admission of a 34-year- old prior sexual assault conviction was upheld because the "striking similarities between the" prior and charged offenses "balance[d] out the temporal remoteness." (Id. at p. 992.) Similarly in Branch, supra, 91 Cal.App.4th 274, the court concluded "substantial similarities" between the charged and uncharged offenses balanced out a 30-year gap between them. (Id. at pp. 284-285; see People v. Pierce (2002) 104 Cal.App.4th 893, 900 [evidence of a sex offense committed 23 years prior to the charged crime was properly admitted]; see also People v. Soto (1998) 64 Cal.App.4th 966, 977-978, 991-992 [upholding admission of uncharged sex offenses occurring 21 to 30 years prior to the charged offenses].)
Defendant asserts the similarities between the prior offense and the charged sexual assault were "not significant enough to balance out the remoteness." We disagree. The prior and current assaults bear significant similarities. In each, defendant followed a woman walking by herself, and then with few or no words exchanged, he knocked her to the ground and tried to pull her shirt off or up. After being knocked to the ground, A.P. saw defendant reach toward his belt or zipper, while R.S., whose sight was impaired by the self-defense spray, felt defendant trying to pull down her pants. When each victim resisted and screamed for help, defendant used force to try to further his desires and keep her from getting up. Defendant did not say anything to either victim during the physical struggle nor did he grope either of them. This is not a "signature crime" by any means, but it is not required to be. The significant similarities between the charged and uncharged assaults balance out the remoteness of the prior assault.
Despite the amount of time between the charged and uncharged assaults, R.S.'s testimony concerning the prior assault had substantial probative value not only because of the similarities between the two attacks but also because R.S. was a source independent of A.P. (See People v. Hollie (2010) 180 Cal.App.4th 1262, 1274 [factors affecting the probative value of uncharged act evidence include the similarities between the uncharged and charged acts, "'the extent to which the source of the evidence is independent of the charged offense, and the amount of time between the uncharged acts and the charged offense'"].) We agree with the trial court that defendant's conduct in 1992 was "highly probative to whether he has a propensity to" assault women with the intent to commit a sex act. Defendant denied assaulting A.P., testifying the incident was a "misunderstanding" that occurred when he tried to prevent her from falling off the trial and he fell on top of her in the process. Evidence that defendant had walked up behind another woman, knocked her to the ground, then tried to remove her clothes and tried to explain it as a misunderstanding was very probative as it provided evidence of his intent when he knocked A.P. to the ground and bolstered A.P.'s credibility that she fell into a ditch because defendant lunged at her and not because she was walking close to the edge of the trail.
Arguing the court underestimated the prejudicial effect of the propensity evidence, defendant focuses on what the jury was told about the charges relating to the prior assault. Pursuant to a stipulation of the parties, the jury was told that in 1992, defendant was charged with and acquitted of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). On appeal, defendant contends the jury also should have been informed that he was convicted of misdemeanor assault or battery. He asserts this omission "exacerbated the risk that the jury would seek to 'punish' [him] for prior conduct it would have viewed as unrevenged," making the prior misconduct evidence substantially prejudicial. (Branch, supra, 91 Cal.App.4th at p. 284 ["If the prior offense did not result in a conviction, that fact increases the danger that the jury may wish to punish the defendant for the uncharged offenses and increases the likelihood of confusing the issues 'because the jury [has] to determine whether the uncharged offenses [in fact] occurred'"].) We are not persuaded by defendant's argument.
We begin by noting the defense requested that the jury not be informed of defendant's misdemeanor conviction. The prosecution wanted the jury to learn of defendant's misdemeanor conviction, but the defense objected. The court specifically inquired whether defense counsel was comfortable that the giving of jury instruction CALCRIM No. 1191 (discussed post) would be sufficient to prevent the jury from seeking in this case to punish defendant for his prior misconduct. Counsel responded in the affirmative.
The possibility of confusing the issues is but one factor in the court's balancing process under section 352. (People v. Christensen (2014) 229 Cal.App.4th 781, 800.) In Christensen, the defendant argued the court erred by admitting evidence of other sex offenses involving a different victim (id. at p. 787) and complained the court and his counsel were wrong in failing to disclose to the jury that he had been convicted of these offenses (id. at p. 799). We concluded that by properly instructing the jury with CALCRIM No. 1191, regarding consideration of this propensity evidence, the court neutralized the danger to the defendant that the jury would try to punish him for uncharged conduct. (Id. at pp. 799-800.) Similarly here, the jurors were instructed with CALCRIM No. 1191, informing them that if they decided defendant committed the uncharged offense they could use it as propensity evidence with respect to the charge of assault with the intent to commit rape in count 1 but warned them that this evidence alone was insufficient to find defendant guilty of the charged offense and was only one factor to consider along with the other evidence. Moreover, the record shows that during their deliberations, the jurors focused on A.P.'s testimony as they requested read back of portions of her testimony, not R.S.'s.
In exercising its discretion under section 352, the court properly considered all of the factors in weighing the probative value of the prior misconduct evidence against its "prejudicial and time-consuming effects." (Nguyen, supra, 184 Cal.App.4th at p. 1117.) The court looked at whether the propensity evidence was more inflammatory than the charged acts and noted the alleged conduct in both was the same — an assault with the intent to commit a sex offense. The court also found admission of the prior offense evidence would not require an undue consumption of time as it would only involve one witness. The court was correct as R.S.'s testimony was not extensive and accounts for just 24 pages of transcript. We conclude the court did not abuse its discretion by admitting evidence of defendant's assault upon R.S. in 1992. We thereby also reject defendant's claim that the admission of this evidence rendered his trial fundamentally unfair and violated his constitutional right to due process. Accordingly, we affirm the judgment.
DISPOSITION
The judgment is affirmed.
IKOLA, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.